New charges are a possibility

CHICAGO (AP) — A judge appointed a special prosecutor Friday to look into why the Chicago state's attorney's office abruptly dropped the case against Jussie Smollett, leaving open the possibility that the former "Empire" actor could yet face charges in what police say was a phony attack on himself that he staged to get attention.

Smollett, who is black and gay, maintains that he was the target of a racist and homophobic attack in January. But if the special prosecutor, former U.S. Attorney Dan Webb, determines that the charges shouldn't have been dropped, he could recommend that they be reinstated or that new charges be brought.

Webb, who was appointed by Cook County Judge Michael Toomin during a Friday hearing, told reporters afterward that he would move the investigation along as quickly as possible. Such probes typically include impaneling a special grand jury, issuing subpoenas, taking witness statements and a final report.

"I intend to expedite everything. But the facts will take me where they take me," Webb said. "I'm going to start fresh and see where it goes."

The Cook County state's attorney's office charged Smollett in February with 16 counts of disorderly conduct for allegedly staging the attack and lying about it to investigators. However, it dropped the charges a month later with little explanation, angering city officials and the police.

Webb, who served as U.S. attorney in Chicago during the 1980s before going on to become arguably the city's most high-profile defense attorney of the last few decades, has been tapped to serve as a special prosecutor on five previous occasions. His list of high-profile clients has included former Illinois Gov. George Ryan, tobacco company Philip Morris and, more recently, Ukrainian energy oligarch Dymitro Firtash.

As a special prosecutor in 2012, Webb was asked to reopen the investigation into the death of David Koschman, who died after being punched in 2004 by then-Chicago Mayor Richard M. Daley's nephew. After an investigation of more than a year that included testimony from nearly 150 witnesses, Webb determined that charges were warranted.

Toomin said the 73-year-old Webb wasn't the first person he considered for the Smollett case. The judge was required by law to first see if the state attorney general, the appellate prosecutor or a state attorney from elsewhere in Illinois wanted the job. During Friday's hearing, he suggested few expressed interest in leading an investigation whose outcome will inevitably spark outrage in some quarters.

"I might say that the responses were less than enthusiastic, as you might expect," Toomin told the courtroom.

A former state appellate judge, Sheila O'Brien, petitioned for a special prosecutor earlier this year in what many believed was a long-shot to reopen the case. But in a surprise decision, Toomin ruled in June that a special prosecutor was, in fact, called for, citing "unprecedented irregularities" in how the case had been handled.

A Smollett spokeswoman declined to comment Friday. But in court filings last month, Smollett's attorneys sharply criticized Toomin's decision to appoint a special prosecutor with broad powers, calling the process a "travesty of justice."

Smollett, now 37, told police he was walking home early on Jan. 29 when two masked men approached him, made racist and homophobic insults, beat him and looped a noose around his neck before fleeing. He said his assailants, at least one of whom he said was white, told him he was in "MAGA country" — a reference to President Donald Trump's campaign slogan, "Make America Great Again."

Several weeks later, authorities alleged that Smollett had paid two black friends $3,500 to help him stage the attack because he was unhappy with his salary as an actor on "Empire" and wanted to drum up publicity for his career.

In his June ruling, Toomin suggested that the county's state's attorney, Kim Foxx, mishandled the case by appointing a top aide to oversee it after she recused herself.

Foxx had been in contact with a Smollett relative and was approached by former first lady Michelle Obama's one-time chief of staff on behalf of Smollett's family. Foxx explained at the time that she was recusing herself to avoid "even the perception of a conflict" of interest.

Foxx has said that Smollett was treated no differently than thousands of other defendants in low-level cases whose charges have been similarly dropped. She also publicly wondered if her being black had anything to do with the criticism she received.

She released a statement Friday pledging her office's "full cooperation" with Webb's investigation.